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  • Writer's pictureEric Beal

Divorce: Breaking it down to its parts

A divorce is a lawsuit. It is a strange kind of lawsuit, but it’s a lawsuit. Every divorce, whether labeled Uncontested, Contested, Amicable, Collaborative, Mediated or other must go through the court system.

Divorces can be broken up into a number of parts. There are procedural parts and substantive parts. This post is to discuss the procedural parts.

Every divorce must have at least three parts:

1. Petition

This is the beginning document that is filed with the court. It can be aggressive, nonaggressive, or somewhere in between. This is the document that begins the minimum 60 day waiting period for all cases other than those few that have an exception.

2. Decree

This is the ending document in every case. A few decades ago, Texas divorce decrees were relatively short. In many states they still are. In Texas, if the parties have children together and any significant property, the decree is likely to be 50-65 pages or more.

3. Proof of Notice to the Spouse

In theory, with rare exceptions, no one should be divorced without knowing about it. Typically, this notice takes place with either service of the petition on the spouse by a process server or with the spouse signing a Waiver of Service.

As long as the case has these three parts, it has everything that it is required to have. A “simple” divorce may have no more than these three parts. A complicated or contentious divorce is likely to have many more pieces.

A complicated or contentious divorce can have all of the parts that any other complicated or contentious civil lawsuit has, plus it can have a number of parts that few other cases have. So, in a very real sense, a complicated or contentious divorce may be one of the most procedurally complex types of civil litigation that our system has.

A complex divorce can have:

1. A Temporary Retraining Order

A Temporary Restraining Order ("TRO") is not the same thing as a protective order. It does not criminalize conduct. In a divorce, it is much easier to get a TRO than in other civil cases, so they are much more common. A TRO is a court order that typically does not order anyone to do anything, but rather sets forth rules for what cannot be done. There are, however, TROs with "Extraordinary Relief" that do order parties to do things.

2. Temporary Orders

Temporary Orders are what a Temporary Injunction is called in Family Law. These orders are court orders that typically include all of the rules that were in the TRO, plus a number of rules requiring affirmative action, such as Temporary Child Support or Temporary Spousal Support. Additionally, the Temporary Orders are typically where one party or the other will be ordered to leave the home, if that happens.

3. Written Discovery

Written discovery typically includes Interrogatories, Requests for Disclosure, Requests for Admission, and Requests for Production. Think of it as a lot of homework that both parties can compel the other to complete.

4. Oral Depositions

A deposition is where a party is required to show up and answer questions under oath. The only right to remain silent is on questions involving criminal conduct. So, if asked a question about anything that does not arise to the level of a crime, for example adultery, the party must answer. Refusing to answer can lead to a jail sentence, and lying can lead to a charge of perjury — which can also lead to jail.

5. Multiple Motions for Additional Temporary Orders

Most civil cases do not have Temporary Injunctions (or Temporary Orders). In divorce, not only are Temporary Orders common, but Motions for Additional Temporary Orders happen routinely. That means that the fighting is not over just because a favorable result was obtained at the initial Temporary Orders hearing. Either side can ask the court again and again and again for new orders.

6. Multiple Other Motions

A divorce can have many other types of motions, in addition to the above. Some are typical of civil litigation — for example, Motions to Compel Discovery — and some are fairly unique to divorce — such as an order for Appointment of Receiver to Sell the Home.

Divorces can be complex. Attempting to handle a contested or complicated divorce alone may be a recipe for disaster.

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